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ADOPTION BY ERIC G. SHIVES AND LINDA S. SHIVES. APPEAL HARRY G. PECK (05/12/87)

filed: May 12, 1987.

IN RE ADOPTION BY ERIC G. SHIVES AND LINDA S. SHIVES. APPEAL OF HARRY G. PECK, FATHER OF ALAN G. PECK


Appeal from Order of the Court of Common Pleas, Orphans' Court Division, of Fulton County, No. 61 of 1985 - OC.

COUNSEL

Dewayne T. Newman, Everett, for appellant.

James M. Schall, McConnellsburg, for Shives, appellees.

Wieand, Olszewski and Tamilia, JJ.

Author: Wieand

[ 363 Pa. Super. Page 227]

This is an appeal from an order which, at the request of a divorced mother, terminated the parental rights of the natural father, thus making it possible for the mother's second husband to adopt the child.

Linda S. Shives, mother and appellee herein, and Harry G. Peck, father-appellant, were divorced in 1983. Alan Peck, who had been born of the marriage on September 27, 1980, resided with his mother, to whom custody had been awarded as part of the divorce decree. An agreement between the parties provided that Harry Peck could visit his son only at the mother's residence until Alan attained the age of five years. In May, 1984, Linda married Eric Shives, and the new marriage partners, together with Alan, took up residence in Harrisonville, Fulton County, Pennsylvania. Father continued to pay support for his son, in the amount of thirty-three ($33) dollars per month, until April 19, 1985, when mother declined to accept further support.*fn1 However, father has had no personal or physical contact with his son since September 27, 1983, the date of Alan's third birthday.

On November 21, 1985, mother filed a petition, pursuant to the Adoption Act, 23 Pa.C.S. § 2101 et seq., to terminate involuntarily father's parental rights.*fn2 A hearing was held on January 1, 1986, at which time the Orphans' Court determined that for a period of six (6) months father had failed to perform parental duties and had evidenced a settled purpose to relinquish his parental claim to Alan. The court's decision to terminate involuntarily father's parental rights was based upon a finding that the father had failed to make reasonable efforts either to contact his son or to maintain a parent-child relationship for a period in excess of that provided by the statute. From the order

[ 363 Pa. Super. Page 228]

    terminating his parental rights, father appealed.*fn3 His principal arguments are that (1) mother-appellee acted by design to prevent his maintaining a relationship with his son in order to effect a termination of his parental rights; and (2) the absence of visitation, in view of the continued support which he contributed to his son, did not alone warrant a termination of his parental rights.

Parental rights may be terminated if a "parent by conduct continuing for a period of at least six months either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties." 23 Pa.C.S. § 2511(a)(1). A "court in terminating the rights of a parent shall give primary consideration to the needs and welfare of the child." 23 Pa.C.S. § 2511(b).

Parental rights may not be terminated in the absence of evidence which is clear and convincing. Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See: In re T.R., 502 Pa. 165, 166, 465 A.2d 642, 642-643 (1983); In re K.L.P., 354 Pa. Super. 241, 246, 511 A.2d 852, 854 (1986); In re Adoption of Hutchins, 326 Pa. Super. 276, 279, 473 A.2d 1089, 1091 (1984); In re Adoption of Sabrina, 325 Pa. Super. 17, 22, 472 A.2d 624, 626 (1984); In re Adoption of Ostrowski, 324 Pa. Super. 216, 218-219, 471 A.2d 541, 542 (1984); 25 Std.Pa.Prac.2d § 126:598. This principle requires evidence which is "so clear, direct, weighty, and convincing as to enable the [factfinder] to come to a clear conviction without hesitancy, of the truth of the precise facts in issue." In re Adoption of James J., 332 Pa. Super. 486, 493, 481 A.2d 892, 896 (1984).

Our scope of review in a termination case is limited to a determination of whether the decision to terminate is supported by competent evidence. In re Adoption of Faith M., 509 Pa. 238, 240, 501 A.2d 1105, 1106 (1985); In re Adoption of N.A.G., 324 Pa. Super. 345, 348, 471 ...


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